Chan Chun Kit v. Huen Wai Keung

HCPI 123/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 123 OF 2016

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R U L I N G

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1.This is a joint application by the parties for leave to rely upon and adduce into evidence a joint traffic accident reconstruction report dated 8 November 2016 that was prepared by Professor Ho Yee Tak Jackson, on the instructions of the plaintiff’s solicitors, and by Ir. Dr. Eric C.H. Lim, on the instructions of the defendant’s solicitors. As such reports are only allowed to be adduced in certain special cases, it was right for the learned Master, in the course of his case management of these proceedings, to refer the application to me for my determination. After a date was fixed for the hearing of the application, the parties jointly submitted the following, which they also sought to be adduced into evidence together with the joint report:

(a) A drawing showing the location of the vehicles just before the impact that was prepared by Professor Ho;

(b) A Simulated Path from Point of Impact to Final Rest that prepared by Ir. Dr. Lim.

2.The plaintiff’s solicitors have served written submissions of Ms. Christina Lee of counsel. The defendant’s solicitors have not served any written submissions. Having perused the written submissions of Ms Lee, I am able to make my ruling without hearing further from the parties.

3.The traffic accident in question occurred on 22 February 2013 shortly before 10 p.m.  Both parties were drivers of urban taxis and, on the night of the accident, the plaintiff was driving his taxi GV 140 along Wang Chiu Road southbound and the defendant was driving his taxi along Wang Chiu Road northbound.  The road was a one lane one way divided dual carriageway.  At a certain point, the 2 lanes of the carriageway were longer divided by a central barrier but were separated by a hatched area.  The 2 taxis were involved in a collision at that part of the carriageway where the 2 lanes were separated by a hatched area.

4.A special feature of this traffic accident is that both the plaintiff and the defendant lost consciousness after the collision and have no recollection of what occurred.  The passengers inside the defendant’s taxi were also unable to offer any helpful account of how the accident occurred.  In the pleadings, each party pointed to the other as being the offending party.

5.The other available evidence of the accident consists of the photographs taken by the police at the scene, the very substantial damage sustained by the 2 taxis, and the police sketch plan showing their final resting positions after the collision.  In a case such as this, the trial judge would appreciate being assisted by traffic reconstruction experts to ascertain, from the available evidence, the relative positions of the 2 taxis in the moments leading up to the impact in order to determine whether the plaintiff’s taxi had crossed over to the defendant’s northbound lane to cause the collision or whether the collision occurred at the hatched area of the carriageway, with both taxis having encroached into that area before the collision.  In their joint report, both experts have professed to be able to reconstruct the relative positions of the 2 taxis immediately before the collision and have set out detailed reasons for their respective reconstructions.

6.This case falls within the exception to the general rule that traffic reconstruction expert evidence is not admissible. As explained by Stuart Smith LJ in Liddell v Middleton[1996] PIQR P36 at p.42:

“In some cases expert evidence is both necessary and desirable in road traffic cases to assist the judge in reaching his or her primary findings of fact. Examples of such cases include those where there are no witnesses capable of describing what happened and deductions may have to be made from such circumstantial evidence as there may be at the scene, or where deductions are to be drawn from the position of vehicles after the accident, marks on the road, or damage to the vehicles, as to the speed of a vehicle, or the relative positions of the parties in the moments leading up to the impact.”

7.I grant leave to the parties to rely upon and adduce into evidence the joint traffic accident reconstruction report dated 8 November 2016 prepared by Professor Ho and Ir. Dr. Lim, together with the following:

(a) A drawing showing the location of the vehicles just before the impact prepared by Professor Ho;

(b) A Simulated Path from Point of Impact to Final Rest prepared by Ir. Dr. Lim.

8.I also direct that the experts be called to give evidence at the trial of the action.

9.I further direct the parties to fix a Check List Review of the action before me, as I shall be taking over the case management of the proceedings from this point onwards.  I need to be informed, in due course, why the defendant has not counterclaimed for damages for the personal injuries that he suffered.

10.I make a costs order nisi that the costs of the joint application be in the cause, with Certificate for Counsel, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

11.Finally, I direct that the hearing fixed to take place tomorrow be vacated.